[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.]

In November 2013, the Assembly of States Parties adopted Rule 134quater. Under the pressure of African States, the ASP agreed that the Trial Chamber should be able to excuse an accused from continuous presence at trial, when the accused “is mandated to fulfil extraordinary public duties at the highest national level”.

Rule 134quater

1. An accused subject to a summons to appear who is mandated to fulfill extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be excused and to be represented by counsel only; the request must specify that the accused explicitly waives the right to be present at the trial.

2. The Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interests of justice and provided that the rights of the accused are fully ensured. The decision shall be taken with due regard to the subject matter of the specific hearings in question and is subject to review at any time.

While this amendment was welcomed by the international community – and most notably by the UK, the US and the AU – several commentators questioned its consistency with the Statute, and in particular with Articles 27.1 (“irrelevance of official capacity”) and 63.1 (“the accused shall be present during the trial”). An amendment to the Rules of Procedure and Evidence (RPE) may not extend the scope of Statute (Articles 51.4 and 51.5), but that is exactly what Rule 134quater seemed to do by deviating from the conditions that the Appeals Chamber (25 October 2013) had laid down for the Trial Chamber’s discretion to excuse an accused from continuous presence at trial. For this reason, Kevin Jon Heller predicted that the new Rule would “probably not” survive judicial review.

So what happened? Did Rule 134quater pass the scrutiny of the Court’s Judges?

Submission Prosecution

Almost immediately after the ASP, Ruto submitted an excusal request under the new Rule, which essentially said that the Trial Chamber should excuse him for as long as he would be Vice-President. Rule 134quater would allow the Chamber to excuse an accused who fulfils extraordinary public duties from all trial hearings, because it would omit a restriction to the duration of an excusal.

The Prosecution responded by questioning the consistency of this interpretation of Rule 134quater with the Statute. Remarkably, the Prosecution did not challenge the validity of the amendment, but argued that the new Rule could not “overrule the Appeals Chamber’s interpretation” (para. 30). In applying Rule 134quater, the Trial Chamber would have to respect all the conditions that the Appeals Chamber had listed, including that an excusal must be limited to what is strictly necessary.

In addition, the Prosecution claimed that Ruto’s interpretation of Rule 134quater would be inconsistent with the equal treatment principle, which is set down in Articles 27.1 and 21.3 (the Statute shall be interpreted and applied “without any adverse distinction”). If the new rule would allow an accused to skip all hearings for as long as he or she is (Deputy-) Head of State, it “would create a regime under which two accused seeking the same relief … would be treated differently, based only on official capacity” (para. 3). The Prosecution argued that Rule 134quater would only be consistent with the equal treatment principle, if the amendment would be read as emphasizing the duties of the individual instead of the office that the accused fulfils.

Finally, the excusal request would fail to distinguish Ruto’s extraordinary public duties from the “normal, day-to-day duties” that the Kenyan Vice-President has to perform. The Prosecution maintained that dealing with the aftermath of a terrorist attack (like the Westgate Mall bombing) would be an extraordinary public duty, but “opening new roads or welcoming a foreign dignitary would not be” (para. 41).

For all these reasons, the Trial Chamber would have to decline Ruto’s request for a “blanket excusal” (para. 38).

Decision Trial Chamber

The Trial Chamber, however, did not agree and permitted Ruto to skip all hearings, except for the closing statements, the delivery of the judgment and the first five trial days after a judicial recess (regulation 19bis). In their decision of 18 February 2014, the three Judges unanimously rejected the Prosecution’s submission, among others, for the following reasons:

(1) Rule 134quater would be consistent with Article 63.1, even without the conditions of the Appeals Chamber. To impose these conditions on the amendment would run counter to “the apparent intention” of the ASP (para. 52), which included all these conditions in another amendment (Rule 134ter). Rule 134quater would be a subsequent agreement (Article 31.3.a of the Vienna Convention on the Law of Treaties) providing “greater clarity” on the scope and application of Article 63.1 to “a specific type of situations” which were not “explicitly addressed when the Statute was being drafted” (paras. 55-56).

(2) Rule 134quater, as interpreted by the defence, would also not offend Article 27.1. According to the Trial Chamber, the new Rule could not “be read as limiting the criminal responsibility of those performing extraordinary public duties … nor as limiting the Court’s jurisdiction over such persons” and would therefore not defeat or obstruct the object of Article 27.1 (para. 60).

(3) Practically the only point on which the Judges agreed with the Prosecution was that “not every duty at the highest national level is an extraordinary one” (para. 64). Yet, according to the Trial Chamber, the high number of extraordinary public duties that the Vice-President has to perform under the Kenyan Constitution would render a “case-by-case analysis impractical” (para. 64). Ruto would therefore not have to demonstrate when and why he would have to perform extraordinary public duties.

Brief Assessment

In my opinion, there are at least two major problems with the Trial Chamber’s decision:

First of all, as submitted by the Prosecution, Rule 134quater cannot go beyond the conditions that the Appeals Chamber identified. The presumption must be that the ASP intended the new Rule to be consistent with the Statute, but if the Rule deviates from the Appeals Chamber’s few weeks old interpretation of the underlying provision of the Statute, then this presumption is overturned. In fact, contrary to the Prosecution’s submission, I do not see how Rule 134quater could ever be reconciled with the Appeals Chamber’s judgement. Rule 134quater clearly ignores some of the Appeals Chamber’s main conditions and is therefore incompatible with Article 63.1.

The Trial Chamber’s counterargument that Rule 134quater is a subsequent agreement – i.e. an agreement of States Parties to a treaty outside the legal framework of that treaty – is dubious. Article 51.4 explicitly encapsulates amendments to the Rules within the scope of the Statute. Rule 134quater cannot be a subsequent agreement, because otherwise amendments to the Rules would turn into amendments to the Statute, for which the drafters established a more difficult procedure in Articles 121 and 122.

Secondly, the Trial Chamber wrongly limited the scope of Article 27.1 to a removal of immunity from prosecution on grounds of official capacity. The first sentence of this provision says that “this Statute” – i.e. the whole Statute – “shall apply equally without any distinction based on official capacity”. Its second sentence starts with “in particular, official capacity as a Head of State … shall in no case exempt a person from criminal responsibility under this Statute” (underlining added). This formulation shows that the removal of immunity from prosecution is an important but not the only example of how the Statute shall apply equally without distinction based on official capacity.

In applying Rule 134quater, the Trial Chamber violated Article 27.1 by focussing not on Ruto’s extraordinary duties, but on the regular functions of his office. It listed the functions that the Kenyan Vice-President fulfils under the Kenyan Constitution and concluded only on this basis that Ruto has to perform extraordinary public duties. In this way, the Trial Chamber overstretched what can reasonable be understood as extraordinary.

No leave to appeal

To make matters even worse, the Trial Chamber rejected the Prosecution’s application for leave to appeal (with Judge Carbuccia dissenting). According to the Majority, this application would not fulfil the requirements of Article 82.1.d, because there would be no good reason to solve the question of the (in)validity of Rule 134quater at this stage….

With this very concerning decision – which shows the irrationality of allowing the Trial Chamber to decide whether its own decisions may be appealed – the Majority closed the litigation on presence at trial in the Ruto case. Perhaps, if Kenyatta’s trial restarts in October, Rule 134quater will kick up again. However, I do not expect much of it, because two of the Judges who rejected the Prosecution’s application for leave to appeal will also decide on Kenyatta’s (future) excusal request.

It thus appears that Rule 134quater will haunt the Court for quite some time to come.

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